WHICH CHARTER? 



BY 



FRANCIS BACON JAMES 



WHICH CHARTER ? 

BY 
FRANCIS BACON JAMES 

Author of "Ohio Law of Opinion Evidence"; "Cases on Con- 
struction of Statutes" and "Advertising and Other Addresses"; 
Ex- President Union Board of High Schools; Ex-President Ohio 
State Board on Uniform State Laws; Formerly Chairman Committee 
on Commercial Law Commissioners on Uniform State Laws in 
National Conference; Formerly Dean of the Cincinnati College of 
Finance, Commerce and Accounts; Member of the General Council 
and Chairman Committee on Commercial Law of the American Bar 
Association and Instructor in Interstate Commerce Cincinnati Law 
School. 



I912 
PUBLISHED BY 

Trade and Transportation Bureau 
Washington, D. C. 



/A-^3^|3 



^^ 






Preface 

The history of the Anglo-Saxon race is a story of 
the g-rowth of a democracy of the people, for the 
people and by the people through their representa- 
tives in the four great departments of Government 
— Executive, Legislative, Judicial and Administra- 
tive. The principles of a representative democracy 
recognize the great economic truth of a division of 
labor and corresponding efficiency in administra- 
tion. The spirit of political anarchy now alive in 
the land seeks to unsettle the fundamental truths of 
representative democracy. In the following pages 
an attempt has been made to codify as a reductio ad 
absurdum these prevailing politically anarchistic 
views (colored somewhat like a chart to bring out 
clearly the lines of demarcation) under the title of 
"A Charter of Anarchy," and in order to bring the 
thoughts of our people back to fundamental truths, 
to present herewith as a contrast thereto the Consti- 
tution of the United States as "The True Charter of 
Democracy." Our citizens are admonished, in the 
present crisis of our national affairs, to read and 
study the latter and contrast it with the spirit of po- 
litical anarchy now prevailing. 

Francis Bacon James. 
Cincinnati, Ohio, and Washington, D. C, August 
I, 1912. 



Table of Contents. 

PAGES 

I A Charter of Anarchy 3 

II The True Charter of Democracy. .• 6 

III The Abnormal in Law Making 25 



ri»Jl»/SFERR£D FROM 

AU6 30 MMi 



A Charter of Anarchy 

Article I. 

BILL OF RIGHTS. 

Section i. All citizens are equal physically, intel- 
lectually, morally and spiritually. 

Section 2. Treason shall consist only of denying 
the equality physically, intellectually, morally or 
spiritually of any citizen of the United States, and 
no person shall be convicted of treason except upon 
hearsay evidence. 

Article II. 

QUALIFICATION FOR AND TERMS OF OFFICE. 

Section i. Each citizen is hereby declared to be 
equally qualified with each other citizen to discharge 
each and every function of Government, to wit: 
Executive, Judicial, Legislative and Administrative. 
No person shall be deprived of his full and equal 
participation in the discharge of each of said func- 
tions. 

Section 2. Frequent rotation in office is essential 
to free government, because persons occupying of- 
fice become too efficient in their respective depart- 
ments, thus tending to destroy the equality of the 
people, and therefore the right of any person to • 
remain in any office shall at all times be subject to ' 
popular vote. It shall be the duty of Congress to 
provide for the easy recall of such people as from 
time to time manifest efficiency in their respective 
offices, and thereby endanger the Republic. This is 
particularly true of the Judiciary. 

Article III. 

THE legislature. 

Section i. Deliberative bodies are dangerous to 
popular rights. The habit of deliberation leads to 
the thraldom of the people, while the Republic 
should be governed by impulses of the heart. For 
fear that Congress may become a deliberative body, 
Congress shall have no power to enact legislation. 



but shall have power to propose legislation, which 
shall be submitted to the vote of the people on ref- 
erendum. If measures so proposed receive two- 
thirds of the entire vote cast same shall become a 
law. 

Section 2. As all legislation is best which comes 
direct from the people, any person shall have a right 
to propose legislation and an election shall be had 
thereon, and if a majority of those voting upon the 
proposed legislation are in favor thereof same shall 
become a law. 

Article IV. 

THE JUDICIARY. 

Section i. The Judicial Bench be and is hereby 
abolished, and there is substituted in lieu thereof 
the Judicial Couch. Judges shall no longer sit upon 
the wool sack, but shall recUne upon feather mat- 
tresses of the Judicial Couch during argument, so 
that their ears may be near the ground and that they 
may quickly catch vibrations of public sentiment. 
Congress shall provide each Judge with a ground-o- 
graph, which shall connect the judicial ear with the 
ground, so that the Judiciary shall be responsive to 
the wishes of the people in deciding each particular 
case. 

Section 2. The people shall be the sole and ex- 
clusive judges as to whether there has been any vio- 
lation of any limitations contained in this instrument 
and no judgment of any Court shall be final. Upon 
the petition of any ten persons, a recall of any Judi- 
cial decision shall be deemed demanded. On such 
demand the question shall be referred to popular 
vote and the decision of a majority of those voting 
on the question shall be final. 

Section 3. It is better that ninety-nine innocent 
men should be convicted rather than one guilty man 
should escape. By reason of nefarious lawyers se- 
curing the acquittal of persons accused of crime, all 
prosecutions shall be upon information of any ten 
citizens. It shall be sufficient if said information 
sets forth that the accused has been guilty of a 
crime. The first witness to be called shall be the 



accused, and the burden of proof shall be upon the 
accused to prove that he has committed no crime. 
Owing to the inconvenience of procuring witnesses 
it shall be sufficient to confront the accused with 
hearsay evidence. If the accused shall be acquitted, 
then upon the petition of ten citizens the question of 
guilt or innocence shall be referred to the people, 
and the people shall then vote upon the question 
whether the accused is innocent or guilty of any 
crime and a majority of the persons voting on said 
question shall be sufficient to convict. 

Section 4. That the rule of reason be and the 
same is hereby aboHshed and there is substituted 
in lieu thereof the rule of popular impression. 

Section 5. The right of the people to hold the 
courts in contempt is inalienable. 

Article V. 

PREDATORY WEALTH. 

Upon the petition of any citizen of the United 
States an election shall be had to determine 
whether any particular business corporation is a 
good corporation or a bad corporation, and if upon 
a majority vote of the people upon the question it 
shall be determined that such corporation is a bad 
corporation, said corporation shall be immediately 
dissolved, its property forfeited and disposed of to 
the highest bidder, and the proceeds thereof turned 
into the public treasury. 

Article VI. 

TITLES OF NOBILITY. 

Any person who shall admit that he has all the 
virtues and political attributes of George Washing- 
ton or Abraham Lincoln or both shall have con- 
ferred upon him a title of nobility. Such title shall 
consist of the words "Sir Eg-o." 



The True Charter of Democracy 

The Constitution of the United States of 
America. 

We the People of the United States, in Order to 
form a more perfect Union, establish Justice, in- 
sure domestic Tranquility, provide for the common 
defence, promote the general Welfare, and secure 
the Blessings of Liberty to ourselves and our Pos- 
terity, do ordain and establish this Constitution for 
the United States of America. 

Article I. 

Section i. All legislative Powers herein granted 
shall be vested in a Congress of the United States, 
which shall consist of a Senate and House of Rep- 
resentatives. 

Section 2. The House of Representatives shall 
be composed of Members chosen every second Year 
by the People of the several States, and the Electors 
in each State shall have the Qualifications requisite 
for Electors of the most numerous Branch of the 
State Legislature. 

No Person shall be a Representative who shall 
not have attained to the Age of twenty-five Years, 
and been seven Years a Citizen of the United States, 
and who shall not, when elected, be an Inhabitant 
of that State in which he shall be chosen. 

* [Representatives and direct Taxes shall be appor- 
tioned among the several States which may be in- 
cluded within this Union, according to their re- 
spective Numbers, which shall be determined by 
adding to the whole Number of free Persons, in- 
cluding those bound to Service for a Term of 
Years, and excluding Indians not taxed, three-fifths 
of all other Persons.] The actual Enumeration shall 
be made within three Years after the first Meeting 
of the Congress of the United States, and within 
every subsequent Term of ten Years, in such Man- 
ner as they shall by Law direct. The Number of 
Representatives shall not exceed one for every 
thirty Thousand, but each State shall have at Least 

*The clause included in brackets is amended by the fourteenth 
amendment, second section. 



one Representative; and until such enumeration 
shall be made, the State of New Hampshire shall 
be entitled to choose three, Massachusetts eight, 
Rhode-Island and Providence Plantations one, 
Connecticut five. New York six, New Jersey four, 
Pennsylvania eight, Delaware one, Maryland six, 
Virginia ten, North Carolina five. South Carolina 
five, and Georgia three. 

When vacancies happen in the Representation 
from any State, the Executive Authority thereof 
shall issue Writs of Election to fill such Vacancies. 

The House of Representatives shall choose their 
Speaker and other Officers ; and shall have the sole 
Power of Impeachment. 

Section 3. The Senate of the United States shall 
be composed of two Senators from each State, 
chosen by the Legislature thereof, for six Years; 
and each Senator shall have one Vote. 

Immediately after they shall be assembled in Con- 
sequence of the first Election, they shall be divided 
as equally as may be into three Classes. The Seats 
of the Senators of the first Class shall be vacated 
at the Expiration of the second Year, of the second 
Class at the Expiration of the fourth Year, and of 
the third Class at the Expiration of the sixth Year, 
so that one-third may be chosen every second Year ; 
and if Vacancies happen by Resignation, or other- 
wise, during the Recess of the Legislature of any 
State, the Executive thereof may make temporary 
Appointments until the next Meeting of the Legis- 
lature, which shall then fill such vacancies. 

No Person shall be a Senator who shall not have 
attained to the Age of thirty Years, and been nine 
Years a Citizen of the LTnited States, and who shall 
not, when elected, be an Inhabitant of that State 
for which he shall be chosen. 

The Vice President of the United States shall be 
President of the Senate, but shall have no vote, un- 
less they be equally divided. 

The Senate shall choose their other Officers, and 
also a President pro tempore, in the absence of the 
Vice President, or when he shall exercise the Office 
of President of the United States, 

The Senate shall have the sole Power to try all 
Impeachments. When sitting for that Purpose, 



they shall be on Oath or Affirmation. When the 
President of the United States is tried, the Chief 
Justice shall preside; And no Person shall be con- 
victed without the Concurrence of two thirds of the 
Members present. 

Judgment in Cases of Impeachment shall not 
extend further than to removal from Office, and 
disqualification to hold and enjoy any Office of 
Honor, Trust or Profit under the United States; 
but the Party convicted shall nevertheless be liable 
and subject to Indictment, Trial, Judgment and 
Punishment, according to Law. 

Section 4. The Times, Places and Manner of hold- 
ing Elections for Senators and Representatives, 
shall be prescribed in each State by the Legislature 
thereof ; but the Congress may at any time by Law 
make or alter such Regulations, except as to the 
Places of choosing Senators. 

The Congress shall assemble at least once in every 
Year, and such Meeting shall be on the first Mon- 
day in December, unless they shall by Law appoint 
a different Day. 

Section 5. Each House shall be the Judge of the 
Elections, Returns and Qualifications of its own 
Members, and a Majority of each shall constitute a 
Quorum to do Business ; but a smaller Number 
may adjourn from day to day, and may be author- 
ized to compel the Attendance of Absent Mem- 
bers, in such Manner, and under such Penalties as 
each House may provide. 

Each House may determine the Rules of its Pro- 
ceedings, punish its Members for disorderly Be- 
havior, and, with the Concurrence of two thirds, 
expel a Member. 

Each House shall keep a Journal of its Proceed- 
ings, and from time to time publish the same, ex- 
cepting such Parts as may in their Judgment re- 
quire Secrecy ; and the Yeas and Nays of the Mem- 
bers of either House on any question shall, at the 
Desire of one fifth of those Present, be entered on 
the Journal. 

Neither House, during the Session of Congress, 
shall, without the Consent of the other, adjourn for 
more than three days, nor to any other Place than 
that in which the two Houses shall be sitting. 



Section 6. The Senators and Representatives 
shall receive a Compensation for their Services, to 
be ascertained by Law, and paid out of the Treas- 
ury of the United States. They shall in all Cases, 
except Treason, Felony and Breach of the Peace, 
be privileged from Arrest during their Attendance 
at the Session of their respective Houses, and in 
going to and returning from the same ; and for any 
Speech or Debate in either House, they shall not be 
questioned in any other Place. 

No Senator or Representative shall, during the 
Time for which he was elected, be appointed to any 
civil Office under the authority of the United 
States, which shall have been created, or the Emol- 
uments whereof shall have been increased during 
such time ; and no Person holding any Office under 
the United States, shall be a Member of either 
House during his Continuance in Office. 

Section 7. All Bills for raising Revenue shall 
originate in the House of Representatives; but the 
Senate may propose or concur with Amendments 
as on other Bills. 

Every Bill which shall have passed the House of 
Representatives and the Senate, shall, before it be- 
come a Law, be presented to the President of the 
United States ; If he approve he shall sign it, but if 
not he shall return it, with his Objections to that 
House in which it shall have originated, who shall 
enter the Objections at large on their Journal, and 
proceed to reconsider it. If after such Reconsid- 
eration two thirds of that House shall agree to 
pass the Bill, it shall be sent, together with the Ob- 
jections, to the other House, by which it shall like- 
wise be reconsidered, and if approved by two thirds 
of that House, it shall become a Law. But in all 
such Cases the Votes of both Houses shall be de- 
termined by Yeas and Nays, and the Names of the 
Persons voting for and against the Bill shall be en- 
tered on the Journal of each House respectively. 
If any Bill shall not be returned by the President 
within ten days (Sundays excepted) after it shall 
have been presented to him, the Same shall be a 
Law, in like Manner as if he had signed it, unless 
the Congress by their Adjournment prevent its Re- 
turn, in which Case it shall not be a Law. 



Every Order, Resolution, or Vote to which the 
Concurrence of the Senate and House of Represen- 
tatives may be necessary (except on a question of 
Adjournment) shall be presented to the President 
of the United States ; and before the Same shall 
take Effect, shall be approved by him, or being dis- 
approved by him, shall be repassed by two thirds of 
the Senate and House of Representatives, accord- 
ing to the Rules and Limitations prescribed in the 
Case of a Bill. 

Section 8. The Congress shall have Power To 
lay and collect Taxes, Duties, Imposts and Excises, 
to pay the Debts and provide for the common De- 
fence and general Welfare of the United States; 
but all Duties, Imposts and Excises shall be uni- 
form throughout the United States; 

To borrow money on the credit of the United 
States ; 

To regulate Commerce with foreign Nations, and 
among the several States, and with the Indian 
Tribes ; 

To establish an uniform Rule of Naturalization, 
and uniform Laws on the subject of Bankruptcies 
throughout the United States; 

To coin Money, regulate the Value thereof, and 
of foreign Coin, and fix the Standard of Weights 
and Measures; 

To provide for the Punishment of counterfeiting 
the Securities and current Coin of the United 
States ; 

To establish Post Offices and Post Roads ; 

To promote the Progress of Science and useful 
Arts, by securing for limited Times to Authors and 
Inventors the exclusive Right to their respective 
Writings and Discoveries ; 

To constitute Tribunals inferior to the supreme 
Court ; 

To define and punish Piracies and Felonies com- 
mitted on the high Seas, and Oflfenses against the 
Law of Nations ; 

To declare War, grant Letters of Marque and 
Reprisal, and make Rules concerning Captures on 
Land and Water; 



To raise and support Armies, but no Appropria- 
tion of Money to that Use shall be for a longer 
Term than two Years ; 

To provide and maintain a Navy; 

To make Rules for the Government and Regula- 
tion of the land and naval Forces ; 

To provide for calling forth the Militia to exe- 
cute the Laws of the Union, suppress Insurrections 
and repel Invasions; 

To provide for organizing, arming, and disciplin- 
ing the Militia, and for governing such Part of 
them as may be employed in the Service of the 
United States, reserving to the States respectively, 
the Appointment of the Offices, and the Authority 
of training the Militia according to the discipline 
prescribed by Congress ; 

To exercise exclusive Legislation in all Cases 
whatsoever, over such District (not exceeding ten 
Miles square) as may, by Cession of particular 
States, and the Acceptance of Congress, become the 
Seat of the Government of the United States, and 
to exercise like Authority over all Places purchased 
by the Consent of the Legislature of the State in 
which the Same shall be, for the Erection of Forts, 
Magazines, Arsenals, dock- Yards, and other need- 
ful Buildings; — And 

To make all Laws which shall be necessary and 
proper for carrying into Execution the foregoing 
Powers, and all other Powers vested by this Con- 
stitution in the Government of the United States, 
or in any Department or Officer thereof. 

Section 9. The Migration or Importation of 
such Persons as any of the States now existing 
shall think proper to admit, shall not be prohibited 
by the Congress prior to the Year one thousand 
eight hundred and eight, but a tax or duty may be 
imposed on such Importation, not exceeding ten 
dollars for each Person. 

The privilege of the Writ of Habeas Corpus shall 
not be suspended, unless when in Cases of Rebel- 
lion or Invasion the public Safety may require it. 

No Bill of Attainder or ex post facto Law shall 
be passed. 



No capitation, or other direct, Tax shall be laid, 
unless in Proportion to the Census or Enumeration 
herein before directed to be taken. 

No Tax or Duty shall be laid on Articles export- 
ed from any State. 

No Preference shall be given by any Regulation 
of Commerce or Revenue to the Ports of one State 
over those of another; nor shall Vessels bound to, 
or from, one State, be obliged to enter, clear, or 
pay Duties in another. 

No Money shall be drawn from the Treasury, 
but in Consequence of Appropriations made by 
Law ; and a regular Statement and Account of the 
Receipts and Expenditures of all public Money shall 
be published from time to time. 

No Title of Nobility shall be granted by the 
United States: And no Person holding any Office 
of Profit or Trust under them, shall, without the 
Consent of the Congress, accept of any present, 
Emolument, Office, or Title, of any kind whatever, 
from any King, Prince, or foreign State. 

Section id. No State shall enter into any 
Treaty, Alliance, or Confederation; grant Letters 
of Marque and Reprisal ; coin Money ; emit Bills of 
Credit; make any Thing but gold and silver Coin 
a Tender in Payment of Debts; pass any Bill of 
Attainder, ex post facto Law, or Law impairing 
the Obligation of Contracts, or grant any Title of 
Nobility. 

No State shall, without the Consent of the Con- 
gress, lay any Imposts or Duties on Imports or Ex- 
ports, except what may be absolutely necessary for 
executing its inspection Laws : and the net Produce 
of all Duties and Imposts, laid by any State on Im- 
ports or Exports, shall be for the Use of the Treas- 
ury of the United States; and all such Laws shall 
be subject to the Revision and Control of the Con- 
gress. 

No State shall, without the Consent of Congress, 
lay any duty of Tonnage, keep Troops, or Ships of 
War in time of Peace, enter into any Agreement 
or Compact with another State, or with a foreign 
Power, or engage in War, unless actually invaded, 
or in such imminent Danger as will not admit of 
delay. 



Article II. 

Section i. The executive Power shall be vested 
in a President of the United States of America. 
He shall hold his Office during the Term of four 
Years, and, together with the Vice-President, 
chosen for the same Term, be elected, as follows : 

Each State shall appoint, in such Manner as the 
Legislature thereof may direct, a Number of Elec- 
tors, equal to the whole Number of Senators and 
Representatives to which the State may be entitled 
in the Congress : but no Senator or Representative, 
or Person holding an Office of Trust or Profit un- 
der the United States, shall be appointed an Elector. 

*[The Electors shall meet in their respective 
States, and vote by Ballot for two persons, of whom 
one at least shall not be an Inhabitant of the same 
State with themselves. And they shall make a List 
of all the Persons voted for, and of the Number of 
Votes for each ; which List they shall sign and cer- 
tify, and transmit sealed to the Seat of the Govern- 
ment of the United States, directed to the President 
of the Senate. The President of the Senate shall, 
in the Presence of the Senate and House of Repre- 
sentatives, open all the Certificates, and the Votes 
shall then be counted. The Person having the 
greatest Number of Votes shall be the President, 
if such Number be a Majority of the whole Num- 
ber of Electors appointed ; and if there be more than 
one who have such Majority, and have an equal 
Number of Votes, then the House of Representa- 
tives shall immediately choose by Ballot one of them 
for President; and if no Person have a Majority, 
then from the five highest on the List the said 
House shall in like Manner choose the President. 
But in choosing the President, the Votes shall be 
taken by States, the Representation from each State 
having one Vote ; A quorum for this Purpose shall 
consist of a Member or Members from two-thirds 
of the States, and a Majority of all the States shall 
be necessary to a Choice. In every Case, after the 
Choice of the President, the Person having the 
greatest Number of Votes of the Electors shall be 



*This clause has been superseded by the twelfth amendment, p. 49. 
13 



the Vice-President. But if there should remain 
two or more who have equal Votes, the Senate shall 
choose from them by Ballot the Vice-President.] 

The Congress may determine the Time of choos- 
ing the Electors, and the Day on which they shall 
give their Votes; which Day shall be the same 
throughout the United States. 

No person except a natural born Citizen, or a 
Citizen of the United States, at the time of the 
Adoption of this Constitution, shall be eligible to 
the Office of President; neither shall any Person 
be eligible to that Office who shall not have attained 
to the Age of thirty-five Years, and been fourteen 
Years a Resident within the United States. 

In Case of the Removal of the President from 
Office, or of his Death, Resignation, or Inability to 
discharge the Powers and Duties of the said Of- 
fice, the same shall devolve on the Vice-President, 
and the Congress may by Law provide for the Case 
of Removal, Death, Resignation or Inability, both 
of the President and Vice-President, declaring what 
Officer shall then act as President, and such Officer 
shall act accordingly, until the Disability be re- 
moved, or a President shall be elected. 

The President shall, at stated Times, receive for 
his Services, a Compensation, which shall neither 
be increased nor diminished during the Period for 
which he shall have been elected, and he shall not 
receive within that Period any other Emolument 
from the United States, or any of them. 

Before he enter on the Execution of his Office, 
he shall take the following Oath or Affirmation: — 
"I do solemnly swear (or affirm) that I will faith- 
fully execute the Office of President of the United 
States, and will to the best of my Ability, preserve, 
protect and defend the Constitution of the United 
States." 

Section 2. The President shall be Commander 
in Chief of the Army and Navy of the United 
States, and of the Militia of the several States, 
when called into the actual Service of the United 
States; he may require the Opinion, in writing, of 
the principal Officer in each of the executive De- 
partments, upon any subject relating to the Duties 
of their respective Offices, and he shall have Power 

14 



to grant Reprieves and Pardons for Offenses 
against the United States, except in Cases of Im- 
peachment. 

He shall have Power, by and v^^ith the Advice 
and Consent of the Senate, to make Treaties, pro- 
vided two-thirds of the Senators present concur; 
and he shall nominate, and by and with the Advice 
and Consent of the Senate, shall appoint Ambassa- 
dors, other public Ministers and Consuls, Judges 
of the Supreme Court, and all other Officers of the 
United States, whose Appointments are not herein 
otherwise provided for, and which shall be estab- 
lished by Law : but the Congress may by Law vest 
the Appointment of such inferior Officers, as they 
think proper, in the President alone, in the Courts 
of Law, or in the- Heads of Departments. 

The President shall have Power to fill up all 
Vacancies that may happen during the Recess of 
the Senate, by granting Commissions which shall 
expire at the JEnd of their next Session. 

Section 3. He shall from time to time give to 
the Congress Information of the State of the Union, 
and recommend to their Consideration such Meas- 
ures as he shall judge necessary and expedient; he 
may, on extraordinary Occasions, convene both 
Houses, or either of them, and in Case of Disagree- 
ment between them, with Respect to the Time of 
Adjournment, he may adjourn them to such Time 
as he shall think proper; he shall receive Ambassa- 
dors and other public Ministers ; he shall take Care 
that the Laws be faithfully executed, and shall Com- 
mission all the Officers of the United States. 

Section 4. The President, Vice-President and 
all civil Officers of the United States, shall be re- 
moved from Office on Impeachment for, and Con- 
viction of. Treason, Bribery, or other high Crimes 
and Misdemeanors. 

Article III. 

Section i. The judicial Power of the United 
States, shall be vested in one supreme Court, and 
in such inferior Courts as the Congress may from 
time to time ordain and establish. The Judges, 
both of the supreme and inferior Courts, shall hold 

^5 



their Offices during good Behaviour, and shall, at 
stated Times, receive for their Services a Coni- 
pensation which shall not be diminished during their 
Continuance in Office. 

Section 2. The judicial Power shall extend to 
all Cases, in Law and Equity, arising under this 
Constitution, the Laws of the United States, and 
Treaties made, or which shall be made, under their 
Authority; — ^to all Cases affecting Ambassadors, 
other public Ministers and Consuls ; — to all Cases 
of admiralty and maritime Jurisdiction; — to Con- 
troversies to which the United States shall be a 
Party; to Controversies between two or more 
States; — between a State and Citizens of another 
State ; — between Citizens of different States ; — be- 
tween Citizens of the same State claiming Lands 
under Grants of different States, and between a 
State, or the Citizens thereof, and foreign States, 
Citizens or Subjects. 

In all Cases affecting Ambassadors, other public 
Ministers and Consuls, and those in which a State 
shall be Party, the supreme Court shall have origi- 
nal Jurisdiction. In all the other Cases before men- 
tioned, the Supreme Court shall have appellate Ju- 
risdiction, both as to Law and Fact, with such Ex- 
ceptions, and under such Regulations as the Con- 
gress shall make. 

The trial of all Crimes, except in Cases of Im- 
peachment, shall be by Jury; and such Trial shall 
be held in the State where the said Crimes shall 
have been committed; but when not committed 
within any State, the Trial shall be at such Place 
or Places as the Congress may by Law have di- 
rected. 

Section 3. Treason against the United States, 
shall consist only in levying War against them, or 
in adhering to their Enemies, giving them Aid and 
Comfort, No Person shall be convicted of Treason 
unless on the Testimony of two Witnesses to the 
same overt Act, or on Confession in open Court. 

The Congress shall have power to declare the 
Punishment of Treason, but no Attainder of Trea- 
son shall work Corruption of Blood, or Forfeiture 
except during the Life of the Person attainted. 

16 



Article IV. 

Section i. Full Faith and Credit shall be given 
in each State to the public Acts, Records, and ju- 
dicial Proceedings of every other State. And the 
Congress may by general Laws prescribe the Man- 
ner in which such Acts, Records and Proceedings 
shall be proved, and the Effect thereof. 

Section 2. The Citizens of each State shall be 
entitled to all Privileges and Immunities of Citizens 
in the several States. 

A Person charged in any State with Treason. 
Felony, or other Crime, who shall flee from Justice, 
and be found in another State, shall on demand of 
the executive Authority of the State from which he 
fled, be delivered up, to be removed to the State 
having Jurisdiction of the Crime. 

No Person held to Service or Labour in one 
State, under the Laws thereof, escaping into an- 
other, shall, in Consequence of any Law or Regula- 
tion therein, be discharged from such Service or 
Labour, but shall be delivered up on Claim of the 
Party to whom such Service or Labour may be due. 

Section 3. New States may be admitted by the 
Congress into this Union ; but no new State shall 
be formed or erected within the Jurisdiction of any 
other State; nor any State be formed by the Junc- 
tion of two or more States, or parts of States, 
without the Consent of the Legislatures of the 
States concerned as well as of the Congress. 

The Congress shall have the Power to dispose of 
and make all needful Rules and Regulations re- 
specting the Territory or other Property belonging 
to the United States ; and nothing in this Constitu- 
tion shall be so construed as to Prejudice any 
Claims of the United States, or of any particular 
State. 

Section 4. The United States shall guarantee to 
every State in this Union a Republican Form of 
Government, and shall protect each of them against 
Invasion ; and on Application of the Legislature, or 
of the Executive (when the Legislature cannot be 
convened) against domestic Violence. 

17 



Article V. 

The Congress, whenever two-thirds of both 
Houses shall deem it necessary, shall propose 
Amendments to this Constitution, or on the Appli- 
cation of the Legislatures of two-thirds of the sev- 
eral States, shall call a Convention for proposing 
Amendments, which, in either Case, shall be valid 
to all Intents and Purposes, as part of this Consti- 
tution, when ratified by the Legislatures of three- 
fourths of the several States, or by Conventions in 
three-fourths thereof, as the one or the other Mode 
of Ratification may be proposed by the Congress ; 
Provided that no Amendment which may be made 
prior to the Year One thousand eight hundred and 
eight shall in any Manner affect the first and fourth 
Clauses in the Ninth Section of the first Article ; 
and that no State, without its Consent, shall be de- 
prived of its equal Suffrage in the Senate. 



Article VL 

All Debts contracted and Engagements entered 
into, before the Adoption of this Constitution, shall 
be as valid against the United States under this 
Constitution, as under the Confederation. 

This Constitution, and the Laws of the United 
States which shall be made in Pursuance thereof; 
and all Treaties made, or which shall be made, un- 
der the Authority of the United States, shall be the 
supreme law of the land ; and the Judges in 
every State shall be bound thereby, any Thing in 
the Constitution or Laws of any State to the Con- 
trary notwithstanding. 

The Senators and Representatives before men- 
tioned, and the Members of the several State Legis- 
latures, and all executive and judicial Officers, 
both of the United States and of the several States, 
shall be bound by Oath or Affirmation, to support 
this Constitution; but no religious Test shall ever 
be required as a Qualification to any Office or pub- 
lic Trust under the United States. 

i8 



Article VII. 
The Ratification of the Conventions of nine 
States shall be sufficient for the Establishment of 
this Constitution between the States so ratifying 

the Same. . 

Done in Convention by the Unanimous Consent 
of the States present the Seventeenth Day of 
September in the Year of our Lord one thousand 
seven hundred and Eighty-seven and of the In- 
dependence of the United States of America the 
Twelfth, In Witness whereof We have hereunto 
subscribed our Names. 

GEO. WASHINGTON, 
President and Deputy from. Virginia. 

Articles in Addition To, and Amendment Of, 
THE Constitution of the United States of 
America, Proposed by Congress, and Ratified 
BY THE Legislatures of the Several States, 
Pursuant to the Fifth Article of the Orig- 
inal Constitution. 

[Article I.]* 
Congress shall make no law respecting an estab- 
lishment of religion, or prohibiting the free exer- 
cise thereof; or abridging the freedom of speech, 
or of the press; or the right of the people peace- 
ably to assemble, and to petition the Government 
for a redress of grievances. 

[Article II.] 
A well regulated Militia, being necessary to the 
security of a free State, the right of the people to 
keep and bear Arms, shall not be infringed. 

[Article III.] 
No Soldier shall, in time of peace, be quartered in 
any house, without the consent of the Owner, nor 
in time of war, but in a manner to be prescribed by 
law. 

*The first ten amendments to the Constitution of the United 
States were proposed to the legislatures of the several Mates by 
the First Congress, on the 25th of September, 1789. They were 
ratified by the various States, and the notifications of ratification 
by the Governors thereof were successively communicated by the 
President to Congress. 

19 



[Article IV.] 

The right of the people to be secure in their per- 
sons, houses, papers, and effects, against unreason- 
able searches and seizures, shall not be violated, 
and no Warrants shall issue, but upon probable 
cause, supported by Oath or affirmation, and par- 
ticularly describing the place to be searched, and 
the persons or things to be seized. 

[Article V.] 

No person shall be held to answer for a capital, or 
otherwise infamous crime, unless on a presentment 
or indictment of a Grand Jury, except in cases aris- 
ing in the land or naval forces, or in the Militia, 
when in actual service in time of War or public 
danger; nor shall any person be subject for the 
same offence to be twice put in jeopardy of life or 
limb ; nor shall be compelled in any criminal case to 
be a witness against himself, nor be deprived of 
life, liberty, or property, without due process of 
law; nor shall private property be taken for public 
use, without just compensation. 

[Article VI.] 

In all criminal prosecutions, the accused shall en- 
joy the right to a speedy and public trial, by an im- 
partial jury of the State and district wherein the 
crime shall have been committed, which district 
shall have been previously ascertained by law, and 
to be informed of the nature and cause of the ac- 
cusation; to be confronted with the witnesses 
against him ; to have compulsory process for ob- 
taining witnesses in his favor, and to have the As- 
sistance of Counsel for his defence. 

[Article VII.] 

In suits at common law, where the value in con- 
troversy shall exceed twenty dollars, the right of 
trial by jury shall be preserved, and no fact tried 
by a jury, shall be otherwise re-examined in any 
Court of the United States, than according to the 
rules of the common law. 

20 



[Article VIII.] 

Excessive bail shall not be required, nor exces- 
sive fines imposed, nor cruel and unusual punish- 
ments inflicted. 

[Article IX.] 

The enumeration in the Constitution, of certain 
rights, shall not be construed to deny or disparage 
others retained by the people. 

[Article X.] 

The powers not delegated to the United States 
by the Constitution, nor prohibited by it to the 
States, are reserved to the States respectively, or 
to the people. 

Artice XI.* 

The Judicial power of the United States shall not 
be construed to extend to any suit in law or equity, 
commenced or prosecuted against one of the United 
States by Citizens of another State, or by Citizens 
or Subjects of any Foreign State. 

Article Xll.f 

The Electors shall meet in their respective states 
and vote by ballot for President and Vice-Presi- 
dent, one of whom, at least, shall not be an inhab- 
itant of the same state with themselves ; they shall 
name in their ballots the person voted for as Presi- 
dent, and in distinct ballots the person voted for as 
Vice-President, and they shall make distinct lists 
of all persons voted for as President, and of all 
persons voted for as Vice-President, and of the 
number of votes for each, which lists they shall 
sign and certify, and transmit sealed to the seat of 

*The eleventh amendment to the Constitution of the United 
States was proposed to the legislatures of the several States by the 
Third Congress on the 5th of March, 1794; and was declared m a 
message from the President to Congress, dated the 8th of January, 
1798, to have been ratified by the legislatures of three-fourths of 
the States. 

tThe twelfth amendment to the Constitution of the United States 
was proposed to the legislatures of the several States by the Eighth 
Congress, on the 12th of December, 1803, in lieu of the original 
third paragraph of the first section of the second article; and was 
declared in a proclamation of the Secretary of State, dated the 25th 
of September, 1804, to have been ratified by the legislatures of three- 
fourths of the States. 



the government of the United States, directed to the 
President of the Senate; — The President of the 
Senate shall, in presence of the Senate and 
House of Representatives, open all the certificates 
and the votes shall then be counted; — The person 
having the greatest number of votes for President, 
shall be the President, if such number be a major- 
ity of the whole number of Electors appointed ; and 
if no person have such majority, then from the per- 
sons having the highest numbers not exceeding 
three on the list of those voted for as President, the 
House of Representatives shall choose immediately, 
by ballot, the President. But in choosing the Presi- 
dent, the votes shall be taken by states, the repre- 
sentation from each state having one vote; a quo- 
rum for this purpose shall consist of a member or 
members from two-thirds of the states, and a ma- 
jority of all the states shall be necessary to a choice. 
And if the House of Representatives shall not 
choose a President whenever the right of choice 
shall devolve upon them, before the fourth day of 
March next following, then the Vice-President shall 
act as President, as in the case of the death or 
other constitutional disability of the President. — 
The person having the greatest number of votes as 
Vice-President, shall be the Vice-President, if such 
number be a majority of the whole number of 
Electors appointed, and if no person have a major- 
ity, then from the two highest numbers on the list, 
the Senate shall choose the Vice-President; a quo- 
rum for the purpose shall consist of two-thirds of 
the whole number of Senators, and a majority of 
the whole number shall be necessary to a choice. 
But no person constitutionally ineligible to the office 
of President shall be eligible to that of Vice-Presi- 
dent of the United States. 

Article XHL* 

Section i. Neither slavery nor involuntary servi- 
tude, except as a punishment for crime whereof 

*The thirteenth amendment to the Constitution of the United 
States was proposed to the legislatures of the several States by 
the Thirty-eighth Congress, on the ist of February, 1865, and was 
declared, in a proclamation of the Secretary of State, dated the 
1 8th of December, 1865, to have been ratified by the legislatures 
of twenty-seven of the thirty-six States. 

22 



the party shall have been duly convicted, shall exist 
within the United States, or any place subject to 
their jurisdiction. 

Section 2. Congress shall have power to enforce 
this article by appropriate legislation. 

Article XIV.* 

Section i. All persons born or naturalized in the 
United States, and subject to the jurisdiction there- 
of, are citizens of the United States and of the 
State wherein they reside. No .State shall make or 
enforce any law which shall abridge the privileges 
or immunities of citizens of the United States ; nor 
shall any State deprive any person of life, liberty, or 
property, without due process of law; nor deny to 
any person within its jurisdiction the equal protec- 
tion of the laws. 

Section 2. Representatives shall be apportioned 
among the several States according to their re- 
spective numbers, counting the whole number of 
persons in each State, excluding Indians not taxed. 
But when the right to vote at any election for the 
choice of electors for President and Vice-President 
of the United States, Representatives in Congress, 
the Executive and Judicial officers of a State, or the 
members of the Legislature thereof, is denied to 
any of the male inhabitants of such State, being 
twenty-one years of age, and citizens of the United 
States, or in any way abridged, except for partici- 
pation in rebellion, or other crime, the basis of rep- 
resentation therein shall be reduced to the propor- 

*The fourteenth amendment to the Constitution of the United 
States was proposed to the legislatures of the several States by the 
Thirty-ninth Congress, on the i6th of June, 1866. On the 21st of 
July, 1868, Congress adopted and transmitted to the Department 
of State a concurrent resolution declaring that "the legislatures 
of the States of Connecticut, Tennessee, New Jersey, Oregon, Ver- 
mont, New York, Ohio, Illinois, West Virginia, Kansas, Maine, 
Nevada, Missouri, Indiana, Minnesota, New Hampshire, Massachu- 
setts, Nebraska, Iowa, Arkansas, Florida, North Carolina, Alabama, 
South Carolina and Louisiana, being three-fourths and more of the 
several States of the Union, have ratified the fourteenth article 
of amendment to the Constitution of the United States, duly pro- 
posed by two-thirds of each House of the Thirty-ninth Congress: 
Therefore, Resolved, that said fourteenth article is hereby declared 
to be a part of the Constitution of the United States, and it shall 
be duly promulgated as such _ by the Secretarjr of State." The 
Secretary of State accordingly issued a proclamation, dated the 28th 
of July, 1868, declaring that the proposed fourteenth amendment 
had been ratified, in the manner hereafter mentioned, by the legis- 
latures of thirty of the thirty-six States. 

23 



tion which the number of such male citizens shall 
bear to the whole number of male citizens twenty- 
one years of age in such State. 

Section 3. No person shall be a Senator or Rep- 
resentative in Congress, or elector of President and 
Vice-President, or hold any office, civil or military, 
under the United States, or under any State, who, 
having previously taken an oath, as a member of 
Congress, or as an officer of the United States, or 
as a member of any State legislature, or as an ex- 
ecutive or judicial officer of any State, to support 
the Constitution of the United States, shall have en- 
gaged in insurrection or rebellion against the same, 
or given aid or comfort to the enemies thereof. But 
Congress may, by a vote of two-thirds of each 
House, remove such disability. 

Section 4. The validity of the public debt of the 
United States, authorized by law, including debts 
incurred for payment of pensions and bounties for 
services in suppressing insurrection or rebellion, 
shall not be questioned. But neither the United 
States nor any State shall assume or pay any debt 
or obligation incurred in aid of insurrection or 
rebellion against the United States, or any claim 
for the loss or emancipation of any slave; but all 
such debts, obligations and claims shall be held ille- 
gal and void. 

Section 5. The Congress shall have power to en- 
force, by appropriate legislation, the provisions of 
this article. 



Article XV.* 

Section i. The right of citizens of the United 
States to vote shall not be denied or abridged by 
the United States or by any State on account of 
race, color, or previous condition of servitude — 

Section 2. The Congress shall have power to en- 
force this article by appropriate legislation. 



*The fifteenth amendment to the Constitution of the United 
States was proposed to the legislatures of the several States by 
the Fortieth Congress on the 27th of February, 1869, and was de- 
clared, in a proclamation of the Secretary of State, dated March 30, 
1870, to have been ratified by the legislatures of twenty-nine of 
the thirty-seven States. 

24 



The Abnormal In Law Making* 

Legislation is merely adding legal sanctions to 
the principles of sociology. When those charged 
with power to make laws select a sanction reason- 
ably adequate to enforce such a principle and when 
such principle has been ascertained by inductions 
neither too broad nor too narrow, including human 
nature and sound ethics, such legislation is normal. 
When, however, the principle is ascertained with- 
out thoughtful research and is impractical in its 
application, then such legislation is abnormal. This 
can be illustrated by the blue laws of the Colonial 
days ; the alien and sedition laws of Adams' admin- 
istration; the silver purchase act; some provisions 
of the contract labor law, and various features of 
the anti-trust law. The most recent attempt at the 
abnormal in law making is the proposed amend- 
ment to the Constitution of Ohio providing for the 
initiative and referendum and will form the body 
of this address. 

From time immemorial laws have been made 
either directly by the sovereign or indirectly by a 
representative deliberative body. Law making is 
direct legislation whether the sovereien is an abso- 
lute monarch or whether the sovereign is a body of 
people. In Russia until the last few years laws 
were made directly by the Czar without the inter- 
vention of a deliberative body. It has been a fun- 
damental principle of the Anglo-Saxon race "from 
the time whereof the memory of man runneth not 
to the contrary" to have laws framed by a repre- 
sentative deliberative body. The Magna Charta 
signed by King John, June 15, 1215, guaranteed 
that the people should "have the common council 
of the Kingdom," which came afterward to be 
known in the reign of Henry III as "the Parlia- 
ment." The principle of a representative deliber- 
ative body to frame laws received the sanction of 
the Petition of Right in 1628 and the Bill of Rights 
in 1689. The Declaration of Independence com- 
plained against King George for "suspending our 

*This address was delivered by Mr. James at the annual dinner 
of the Cincinnati Chapter of the American Institute of Banking, 
Havlin Hotel, Cincinnati, Ohio, Tuesday evening, March 24, 1908. 
— Publishers. 

25 



own legislature and declaring themselves vested 
with power to legislate for us in all cases whatso- 
ever." The Revolution successfully contended 
against the power of the British sovereign to di- 
rectly legislate for the people of America and in 
favor of indirect legislation by a representative 
legislative body. The query is not whether one is 
for or against the initiative and referendum, but 
whether he is for or against legislation by the initi- 
ative and referendum. There are governmental 
affairs in which the referendum is proper, but not 
as a method of law making. Law making by the 
initiative and referendum is the most dangerous 
innovation ever presented to the American people. 
The constitution of a State is a social compact bind- 
ing the citizens together into a political unit, and 
therefore is a proper subject for a popular vote. 
The constitution, however, merely defines the de- 
partments of government and imposes limitations 
on the exercises of the powers of each, and is more 
or less permanent in its nature. The referendum is 
also proper in giving or withholding support to ad- 
ministrative acts vitally and irrevocably affecting 
for an extended period of time all the members of a 
local community. 

Law making includes the science of ethical com- 
promises. Laws merely reflect social and economic 
conditions. On these there is always a marked dif- 
ference of opinion. When these differences are 
irreconcilable and stubbornly divide a community, 
it brings unrest and an evasion of law by one-half 
of the community and creates a distrust of all laws. 
When a community is sharply divided on its eco- 
nomic and social views, there should be some 
method of arbitrating differences on a fair basis. 
A deliberative body is the best ever created for that 
purpose. Debate, discussion and criticism tend to 
modify the views of each arbitrator and bring about 
legislation which is not too radical to either side; 
such body is not compelled to accept or reject a 
single proposition, but may consider alternative 
propositions and take the best from all. When these 
conflicts between inconsistent views pass through a 
single deliberative body it has been found that such 
a body is frequently too responsive to popular im- 

26 



pulse, prejudice and passion. The Anglo-Saxon 
race wisely devised a second deliberative body with 
a veto power in an executive as a check on hasty 
action. Under this system of representative gov- 
ernment with proper constitutional limitations on 
the exercise of its powers, America has grown great 
commercially, politically, morally and socially. It 
is now proposed to substitute in place of this de- 
liberative body direct legislation by the direct vote 
of the people. In other words, that a small class of 
the people may project a proposed law which the 
people must accept or reject without change with 
no alternative between one measure and another 
upon the same subject and if criticism shows a 
measure is badly drawn or defective, it must be ac- 
cepted or rejected as an entirety without change. 
The cry has been raised that if the representatives 
cannot trust the people, the people cannot trust their 
representatives. In this statement is involved a 
fatal fallacy. The people are more accustomed to 
study human nature than they are to study the de- 
tails of a human measure. Government by the peo- 
ple does not mean that each citizen must perform 
each function of government. In the affairs of life 
there must be a division of labor. Representative 
government is merely a recognition of this eco- 
nomic principle. This palpable fallacy has been 
aimed at the executive and will next be aimed at the 
judiciary. It is proposed that executive officers 
shall be paralyzed by the "recall" and the next step 
in the anarchistic program will be a review of 
judicial decisions by a popular vote.* History has 
demonstrated that a free government cannot exist 
without an independent judiciary, an independent 
executive and an independent legislative body. 
Each citizen cannot perform all the functions of 
government. Supposing, for example, there was a 
pipe to be laid on the streets of Cincinnati or an 
engine to be run in the water works. No sane per- 
son would trust all of the people to lay the pipe or 
run the engine; that there must be a division of 
labor and the most skilled selected to perform these 

*It will thus be seen that Mr. James prophesied a PfORf ^.^J^ 
for the recall of judicial decisions on March 24, 1908, nearly tour 
years before being promulgated by Col Theodore Roosevelt at 
Columbus, Ohio, February 21, 1912.— Publishers. 

27 



duties. It has not been many years since Coxie's 
army marched into Washington and claimed that 
the land about the Capitol belonged to all the people 
and each member of Coxie's army had a right to 
step on the grass. To have encouraged this van- 
dalic principle would be destructive of all govern- 
ment. It would give the right to any citizen or all 
citizens to take seats upon the bench of the Supreme 
Court of the United States, while in session ; to en- 
ter upon the most secret conferences at the White 
House; to interrupt the sessions of a legislative 
body and occupy the seats of the members. We 
can trust all the people and all the people can trust 
our representatives. We cannot trust all the peo- 
ple to perform all the functions of government. A 
division of labor is necessary. In addition to the 
initiative, an unrestricted referendum is proposed. 
In other words, every time a law is passed a small 
minority of the people will be given the right to se- 
cure its suspension and an ultimate vote. Such a 
method of government will paralyze the inde- 
pendence of the legislature. Every measure en- 
acted in the wisdom of a deliberate body will be at 
the mercy of any five or ten per cent, of the voters. 
It is hard now to get men to serve in official posi- 
tions because of the freedom with which their mo- 
tives are attacked. The referendum is merely a 
new method of amplifying attacks upon normal 
legislation. Law making by the initiative and ref- 
erendum is no experiment. It has been tried and 
experience condemns it. It has been argued that 
law making by the initiative and referendum would 
work well in small communities by securing the 
popular approval or disapproval of laws. Switzer- 
land is composed of twenty-two cantons, three of 
which are subdivided. No one canton contains 
more than five hundred thousand inhabitants. One 
of the cantons — Freiburg — the eighth largest 
in area and population, has resolutely refused 
to adopt direct legislation and has consist- 
ently adhered to making laws through a rep- 
resentative body. In five of the cantons laws are 
made at town meetings. It is said that in one of 
these cantons ten thousand voters gather annually 
in the public square and vote yes or no on proposed 

28 



measures by the raising of hands. In eleven can- 
tons the referendum is compulsory ; in other words, 
the legislative body has no power to enact laws, but 
must submit all of them to popular vote. In eight 
cantons the referendum is optional at the request 
of a percentage of the electors. No measure has 
ever received a popular majority in Switzerland. 
An attempt was made to enforce a popular majority 
by passing criminal laws making it a crime for an 
elector not to vote. The voters, however, would 
not be coerced, and went to the polls and cast blank 
ballots. The politicians of Switzerland are now 
making an effort to pass a law to pay every man 
who votes and marks his ballot. In some cantons 
they enact a new constitution each year, thus over- 
throwing and destroying all stability of government. 
Oregon is now trying the experiment, and at the 
coming election nineteen separate propositions will 
be submitted to popular vote. Experience in Ore- 
gon has shown that the measures proposed by the 
initiative are crude and ambiguous, thus adding to 
the already over perplexing problems of bad legis- 
lation. The new Oklahoma Constitution is a fail- 
ure and the referendum defeated in practice by each 
measure being marked an emergency one, which 
withdraws it from the referendum. Thus the legis- 
lature of Oklahoma in its wisdom after reflection 
has practically repudiated the referendum. 

The diiiference between a corporation and a gov- 
ernment is that government is the enforced co-op- 
eration of the people and a corporation the volun- 
tary co-operation. The American form of govern- 
ment is a political democracy; a corporation is an 
industrial democracy. As the State has its Gov- 
ernor, Legislature and electors, so a corporation has 
its president, directors and stockholders. The Gov- 
ernor corresponds to the president ; the Legislature 
to the directors; the electors to the stockholders. 
The fallacy of the initiative and referendum in gov- 
ernmental affairs can be illustrated in corporate af- 
fairs. According to the advocates of the initiative 
and referendimi, each citizen has a right to exercise 
all the functions of government, and, by analogy, 
each stockholder would be entitled to perform all 
the powers of a corporation. The cry could be 

29 



made that if the directors did not trust the stock- 
holders, the stockholders could not trust the direct- 
ors. By the referendum in law making it is pro- 
posed, on petition of a small per cent, of the elect- 
ors, the action of the legislature can be suspended. 
Applying the same principle to a corporation, each 
proposed act of the directors could be suspend- 
ed by a small per cent, of the stockholders. In 
other words, any 5 per cent, of the stockholders 
could paralyze the work of a corporation. The 
dangers of such a condition could be seen in a 
large railroad corporation with numerous stock- 
holders, the majority of whose stock was not held 
by a single individual. The difference between 
legislative measures and administrative acts can 
also be illustrated by the corporation. Any pro- 
posed act of a corporation which affects the vital 
rights of all stockholders is by universal custom 
and in some States by law submitted to a vote of 
stockholders, such as a bond issue or increase of 
capital stock. The referendum may well be useful 
in government as to such administrative acts as is- 
suing bonds or granting franchises. A law can be 
passed today and repealed tomorrow. Franchises, 
however, granted today must exist without repeal 
until the termination of the period of time for which 
they are granted ; a bond until it is extinguished by 
payment. The issuing of bonds and granting of 
franchises are not acts of law making, but merely 
administrative acts, affecting all the citizens of a 
community. 

Those who are aggressively supporting the initi- 
ative and referendum do not look upon it as an end 
but as a means to carry out theories destructive to 
our existing institutions. It is known that many of 
those who have been aggressively canvassing the 
State are believers in socialism, the abolition of pri- 
vate ownership of land, and establishing govern- 
ment ownership of railroads. It is sought not only 
to destroy representative government in the States, 
but a National Referendum League has been 
formed to destroy representative government in the 
nation. Nothing has ever been devised to bring 
about unsettled conditions of commerce and trade 
as such a proposition. Supposing, for example, 

30 



Congress should enact a tariff law with twenty 
schedules. These schedules would not please all 
the people. There would undoubtedly be groups 
of 5 per cent, of the people dissatisfied with each 
schedule, and each group could file a petition to 
submit each schedule to popular vote. The effect 
of filing the petitions would be to suspend the tariff 
law and stop the revenues of the Government. It 
would keep the whole industrial nation unsettled, 
before the filing of the petition as to whether a pe- 
tition would be filed, after the filing by a suspension 
of the tariff law, and after the suspension a feeling 
of uncertainty whether the popular vote would be 
for or against each or all of the schedules. At the 
same time 5 per cent, of the electors could submit a 
measure for a debased currency of sixteen to one 
and another for an irredeemable paper currency. 
You can always find 5 per cent, of the people 
against the government ; you can always find 5 per 
cent, of the people moved by a yellow journal or a 
yellow demagogue — the initiative and referendum 
giving each a new field. 

Like all things human, no form of government is 
perfect. Instead of destroying a time honored in- 
stitution, seek to reform it. Three evils of repre- 
sentative government arise from the fact that our 
representative bodies are tooi large, terms of office 
too short and compensation too low. Our repre- 
sentative bodies should be filled with men of ex- 
perience in the various walks of life and not by 
amateurs merely seeking notoriety. Do not de- 
stroy our representative system, but improve it. 
The pessimist mournfully croaks, "Progress and 
Poverty"; the optimist cheerfully cries, "Progress 
and Prosperity." 



31 



LIBRARY OF CONGRESS 



012 050 547 6 



